IMPORTANT POINT
The petitioner must prove the issuance of the cheques and the existence of a legally enforceable debt, and the respondent's probable defense and version must be considered in deciding a complaint under Section 138 of the NI Act.

JUDGMENT

1. The petitioner, vide the present leave petition under Section 378(1) of the Code of Criminal Procedure, 1973 [CrPC], seeks leave to appeal for setting aside of the judgment dated 29.10.2021 passed by the learned MM (NI Act)-02, Central, Tis Hazari Courts, Delhi in CC No.510612/2016 titled as C.P. Singh vs Vinod Prasad, whereby the respondent was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [NI Act].

2. As per the complaint filed by the petitioner, the petitioner and the respondent were on friendly terms for the past 10-12 years. Sometime in the first week of January, 2016, the respondent had approached the petitioner for a friendly loan of Rs.15,00,000/- [Rupees Fifteen Lakhs Only] for his personal business needs and the same was extended by the petitioner to him sometime in the second week of January, 2016. In exchange for receiving the said friendly loan amount, the respondent had given original property documents of his property bearing No.B-181, Arjun Nagar, Nangli Vihar, Najafgarh, New Delhi-110043 to the petitioner as also two post-dated cheques bearing No.675042 dated 21.04.2016 for Rs.7,50,000/- [cheque no.1] and bearing No.675043 dated 29.04.2016 for Rs.7,50,000/- [cheque no.2], both drawn on State Bank of India, Branch Nangli Sakarwati, New Delhi. Thereafter, both the cheques were presented by the petitioner at United Bank of India, Branch Timarpur, Delhi, whereupon, cheque no.1 was returned vide return memo dated 25.04.2016 with the remarks 'Insufficient Funds' and the cheque no.2 was also returned with the remarks 'Insufficient Funds' vide return memo dated 02.05.2016. Aggrieved thereby, the petitioner sent a legal notice dated 06.05.2016 by registered post to the respondent. The same was duly replied to by the respondent. Thereafter, as the respondent failed to make the payment, the petitioner filed the complaint under Section 138 of the NI Act against him, sometime in July, 2016.

3. This Court, vide order dated 08.02.2022, issued notice. Further, vide order dated 12.05.2022, a fresh notice was directed to be served upon the respondent and the respondent was duly served. Finally, arguments were heard and judgment was reserved on 07.12.2023.

4. Learned counsel for the petitioner submitted that the petitioner has complied with all the procedural formalities as regards the offence under Section 138 of the NI Act; and that the respondent has not denied that the cheques in question belong to him and as such, the learned Trial Court has erred in opining that the petitioner was to prove that the signature(s) on the cheques in question were indeed the signature(s) of the respondent since the presentation of the cheques in question by the petitioner and their subsequent dishonour was nowhere denied by the respondent; and that since, based on settled principles of law, there is a presumption in favour of the petitioner, therefore, the onus lay upon the respondent to prove the contrary and lastly since the petitioner had complied with all the requirements mandated under Section 138 of the NI Act, therefore, the respondent ought to have been convicted for the offence punishable under Section 138 of the NI Act.

5. Learned counsel for the respondent submitted that merely because the respondent has not denied that the cheques in question belong to him, therefore, the presumption under Section 139 read with Section 118 of the NI Act does not arise in favour of the petitioner; and that the petitioner has not been able to prove that there exists a legally enforceable debt as on the date of issuance of the cheques in question or on the date of their dishonour; and that the petitioner has not been able to prove his financial capacity as on the date of the advancement of the friendly loan amount; and that it was proved during the cross-examination of the petitioner before the learned Trial Court that the petitioner had no personal friendly relations with the respondent and on th